Monday, September 01, 2014

I am a member of a playwrights discussion group on Facebook, and earlier in the month I mentioned in a discussion that I had been sued for producing my own play. I answered questions about the case as well as providing a link to the article I wrote for the Dramatists Guild, The Strange Case of Edward Einhorn v. Mergatroyd Productions.

Then on Sunday, August 17, 2014 Edward Einhorn posted a response on the playwrights discussion group.

I sat down this morning to write a lengthy response but realized I had already gone over most of it in the article and on the blog. So I decided to stick to a few points, one of which is Einhorn's attempt to suggest that my response to the case is purely emotional. He began his post:

I see from the recent postings that Nancy McClernan is still deeply and emotionally involved in a dispute we had nearly ten years ago.

First off, the "dispute" was tried in court in April 2006, so it's eight years, not nearly ten. Secondly, the reason I'm still discussing the case is not due to my personal feelings towards Edward Einhorn.

What I found most telling in Einhorn's post was his confession that he did indeed come up with the scheme to register his fraudulent copyright as a tool to drag my former partner and I into federal court. Einhorn wrote:

As I stated at the time, and as I will state again—the main thrust of the lawsuit was that I had directed a show for her and was never paid. As we had merely agreed to a fee by email rather than signing a contract, I wasn’t sure if a pure contract claim was valid. Therefore I included the fact that I felt that she had used my intellectual property—ie, the directing work I had done, without pay. I understand that some people feel that blocking is not intellectual property. It is my opinion that it is just a different sort of choreography, but really that’s an academic question for me at this point.

The "main thrust" of the lawsuit was not about Edward Einhorn's desire to be paid. The amount of the dispute was $1000, and if Edward Einhorn truly cared about being paid he could have taken the matter to small claims court. Or even attempted to negotiate with my former partner.

It does not matter whether Einhorn sincerely believes that I was using his intellectual property, his belief is wrong on two counts: I didn't use his direction - which is what he means by "intellectual property" in the 2005 production of TAM LIN, for which he sued us; and he had no "intellectual property" at stake. There was no precedent for direction as intellectual property when he got his fraudulent copyright.

When F. Scott Fitzgerald said: "Let me tell you about the very rich. They are different from you and me" this is the kind of thing he was talking about. When Edward Einhorn wasn't sure about a legal matter over $1000 he turned it into a federal case by taking a copy of my TAM LIN script, removing my name from it, scribbling in his minimal stage directions, and filing it with the US Copyright Office as his own "blocking and choreography" script. He filed his copyright in late 2004 and then he waited a year, until we began rehearsals on our 2005 production of TAM LIN in October 2005, to sue us for going ahead with the 2005 production - a production which he had no connection with.

This is not the kind of thing someone living on a weekly salary would consider doing.

I just watched an interview with Bill Moyers and Paul Krugman the other night and Krugman had an important point to make about the effects of economic inequality and the dangerous power of the wealthy:

“We’ve had a parade of billionaires whining about the incredible injustice that people are actually criticizing them… this is very strange and it’s kind of scary. It’s one thing if someone without a lot of power seems to be going off into a rage for no good reason, but these are people who have a lot of influence because of the amount of money they control.

People with more money than brains, and more self-regard than either, can do enormous damage to the public interest thanks to their socio-economic advantages. Edward Einhorn, who lives off a trust fund, and who believes that actors don't really need to be paid because they get "the glory" of being on stage, decided to have a hissy fit in federal court.

If my former partner Jonathan Flagg hadn't taken it upon himself to stand up to Einhorn, going to court to get a judge to declare Einhorn's copyright invalid, his fraudulent "blocking and choreography" script would still exist, a convenient toehold for the next legal prospector who dreams of a director's copyright. Jonathan paid for our case out of his own salary, and is the unsung hero of this saga. He no longer has any involvement in theater - and who can blame him - but American playwrights owe him gratitude for fighting this case.

And playwrights need to be aware of stage directors like Edward Einhorn who fully believe in the rights of directors to hold a copyright against a playwright's work. No playwright should willingly work with such a director. And that is why it's so important for me to keep talking about this case - so playwrights realize that there are directors such as Edward Einhorn still out there, still hoping for a director's copyright, fully backed by the stage director's union the SDC, and with enough money to try to make it happen through our court system.